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Washington Court Upholds Dismissal of Criminal Charges after Finding No Probable Cause Supporting the Arrest

Police officers may engage in social interactions with individuals.  Some actions or activities, however, can transform the social interaction into a seizure.  Under Washington criminal law, an officer must have reasonable suspicion to detain an individual and probable cause to arrest him.  In a recent case, the state challenged the dismissal of its case after the trial court found the detention and arrest had been unlawful and suppressed the evidence found in a search.

According to the appeals court opinion, a deputy saw a man and woman sitting on a public sidewalk next to a restaurant at about midnight.  There was a “No Trespassing” sign in the restaurant window, but other businesses in the strip mall were still open. When he approached, he asked the pair what they were doing and referenced the sign.  The man, who was the defendant in this case, told the deputy they were charging a cell phone.  The deputy saw a cord plugged into an outlet outside the building.  The deputy asked the defendant’s name.  The defendant gave him a name, but the dispatcher found no record of that name.  The deputy accused the defendant of lying, and the defendant gave the deputy his real name and admitted there was an arrest warrant out for him.  The deputy could not arrest the defendant on the warrant because it was from another jurisdiction.  He instead arrested him for providing false information to a police officer and trespass.

The deputy found methamphetamine and cocaine in the defendant’s pockets when he searched him following the arrest.  The defendant was charged with possessing a controlled substance, but not with trespass or providing false information.

The defendant moved to suppress that evidence.  The trial court found the interaction had become a seizure when the deputy asked the defendant’s name.  The court found the deputy did not have grounds to ask the defendant for his name because he did not believe him to be under the influence and had not observed suspicious behavior.  The court found the deputy did not have a reasonable suspicion to support the seizure and granted the defendant’s motion and dismissed the charges against the defendant with prejudice.

The state appealed, arguing the trial court erred in finding the deputy needed a basis to request the defendant’s name during a social contact.  It also argued, in the alternative, the trial court erred in finding the deputy did not have reasonable suspicion of a crime.  The state argued the seizure and arrest were justified because of the trespass and theft of electricity.

The defendant had argued to the trial court that the interaction was an unlawful investigative detention.  The state argued the investigative detention was supported by reasonable suspicion.  The trial court found the deputy did not have sufficient facts to conduct a Terry stop, but found that the initial interaction was a social contact that became a seizure when the deputy asked the defendant’s name.

The state argued on appeal that the trial court had been correct in finding the initial interaction was a social contact but erred in finding it transformed to a seizure.

The appeals court agreed with the trial court’s conclusion the initial interaction was a social contact, but disagreed about when it became a seizure.   Pursuant to case law, just starting a conversation does not create a coercive environment, so asking the defendant’s name did not transform the encounter.

Viewing the totality of the circumstances objectively, the appeals court found the deputy’s actions did not constitute a seizure up to the point he asked the defendant’s name.  The appeals court did not address whether the deputy’s accusation of lying converted the encounter into a seizure because the arrest clearly did.

An officer has probable cause to make a warrantless arrest if he knows sufficient facts and circumstances sufficient to lead a reasonable person to believe a crime has been committed.  The trial court had found the deputy did not have reasonable suspicion the defendant committed trespass.

Under Washington law, trespass occurs when a person enters another’s premises without express or implied permission.  If the premises are open to the public and the defendant complies with the lawful conditions placed on access, then he has a defense to trespass.  The defendant also has a defense if he reasonably believes the owner would have let him to stay.   RCW 9A.52.090.

In this case, the defendant was on “a sidewalk that was open and accessible to the public.”  According to the defendant’s evidence, there were no signs or other visible restrictions related to sitting on the sidewalk.  There was evidence other buildings in the strip mall were still open.  The trial court found no evidence suggesting the “No Trespassing” sign prohibited the public from being on the public sidewalk outside the building.  The trial court also found that the “open and unsecured outlet” outside the building “made it less likely that [the defendant] was there without permission.”  The appeals court found the deputy had insufficient evidence to conclude or even suspect the defendant was not permitted to sit on the public sidewalk.  He therefore had insufficient information to conclude the defendant was trespassing.

The appeals court also found the deputy lacked reasonable suspicion and probable cause to arrest the defendant for theft of electricity.  The outlet was unsecured and outside.  The deputy did not know who owned it or if they prohibited its use.

Because the deputy lacked reasonable suspicion to detain the defendant and probable cause to arrest him, he could not lawfully perform a search incident to arrest.  The appeals court disagreed with the trial court’s reasoning, but agreed with its conclusion, and therefore affirmed the trial court’s suppression of the evidence and dismissal of the charges.

If you are facing drug charges following an interaction with a police officer, an experienced Washington criminal defense attorney will fight to ensure your rights are protected.  Call Blair & Kim, PLLC, at (206) 622-6562.

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